Josh Blackman On 9th Circuit's Refusal To Lift Stay

2/12/17

Basman:

Josh Blackman on the 9th C thingey and Justice Jackson on sovereign executive power--"to personify the federal  sovereignty."---Blackman notes the 9th C's erroneous substitution of a virtual "strict scrutiny" standard for what should have been, he argues, a "rational basis" standard of constitutional review: 

Blackman:

As a matter of inherent Article II authority, even in the absence of any statute, the President could deny entry to the United States of those he deems dangerous. But that is not the entire calculus. Here Congress has, with unequivocal language, delegated its Article I powers over immigration to the President. In Justice Jackson’s words:

Quoting Jackson

".....When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.[2] In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it....."

Back to Black(man):

The 9th Circuit did not apply a presumption of constitutionality. Nor did it impose a wide latitude of interpretation. Rather, without any precedent, it imposed an insurmountable burden on the government. Had the panel even bothered to engage with the statute, it would have realized we are in Jackson’s first zone, and that judicial scrutiny must be at an absolutely minimum. 

The court should have presumed that when Congress afforded the President this power, it did not think Due Process controlled, for it failed to put in any review mechanisms (in contrast to countless other provisions of the immigration laws). There is every indication that, at least with respect to denial of entry, Congress agreed the President had plenary power.

Instead, the court applied something approaching strict scrutiny to the denial of entry for certain aliens who have zero connection to the United States. Really, it applied the sort of scrutiny Justice Jackson wrote about in the third tier:

Quoting Jackson:

Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Back to Black(man):

There are so many grounds to criticize the panel’s decision, but the failure to even discuss the statutory framework is inexcusable because it allowed the judges to look away from Justice Jackson....